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At U.S. Department of Veterans Affairs (VA) hospitals, as in much of the private sector, keeping up with patients’ electronic health records (EHRs) takes a significant amount of time in a nurse's shift. So much time, in fact, that in recent years it has become common practice for nurses—advanced practice nurses (APRNs) in particular at VA facilities—to work after hours. The trouble is, according to a class action lawsuit first brought by plaintiffs Stephanie Mercier and Audricia Brooks in 2012, much of that after-hours work has not been compensated by VA hospitals.

The initial complaint centered on what are called “view alerts”—notifications and information requests regarding patient status; they're time sensitive and require a response from the nurses who receive them. According to the complaint, view alerts “are continuously sent to nurses to complete with no limit as to how many View Alerts each nurse may receive or be asked to perform…. Under their professional responsibilities as patient advocates, nurses have an obligation to complete all View Alerts.”

“Because of a number of factors converging, [nurses] were having to do a lot of this work off the clock,” says Mike Hamilton of the Provost Umphrey Law Firm, one of the attorneys representing the plaintiffs. He explains that nurses were handling this added administrative burden at the same time patient loads were increasing without corresponding increases in staffing. Rather than compromise face-to-face time with patients, nurses would take the view alert work home. “In many hospitals, they were being issued laptops by the VA to take home. But they were not getting paid for that,” Hamilton says.

This problem is not news to the VA. The department itself conducted a cross-sectional survey in 2010 to ascertain the effect of EHRs on test-result management. That survey found that more than 85% of the nearly 2,600 primary care providers who responded “stayed after hours or came in on weekends to address notifications.” “Their own survey confirms that they knew this additional time burden exists,” Hamilton says.

Nevertheless, in February 2014, the claims court dismissed the suit, saying the plaintiffs didn't demonstrate that they had been given express directives to complete overtime work. An appeal was granted this year by the circuit court of appeals, which in May 2015 ruled that the work had in fact been officially ordered, by means of inducement; the court remanded the case for review by the lower court. An amended complaint, filed on November 16, 2015, expanded the suit to include physician assistants as well as APRNs. The claim has also been clarified to include any kind of off-the-clock work on EHRs.

Though the battle is far from over, Hamilton remains optimistic. “The facts are pretty simple,” he says. “This is a big group of highly trained, hardworking people who should be paid for the work they are doing.”—Laura Wallis